SUPERIOR COURT OF JUSTICE - ONTARIO

COURT FILE NO.: 32226/14

DATE: 20151013

RE: Regina v Justin Green

BEFORE: E.M. Morgan J.

COUNSEL:
Erin Pancer, for the Crown

Daniel Moore, for the Defendant

HEARD: Trial: April 20 -23, 2015; sentencing submissions: September 18, 2015

SENTENCING JUDGMENT

[1] The Defendant was charged with 29 firearms offenses. On May 12, 2015, after a four day trial before me sitting without a jury, he was found guilty on seven counts of transferring a firearm contrary to s. 99(1)(a) of the Criminal Code and sixteen counts of possession of a firearm for the purpose of transferring it, contrary to s. 100(1) of the Criminal Code.

[2] The offenses took place between January 3, 2011, when the Defendant purchased his first firearm pursuant to a license that had been issued to him the previous month, and September 14, 2012, when he made his final purchase of a firearm. Of the twenty-three weapons purchased by the Defendant, seven have turned up at crime scenes where the Defendant was otherwise not connected. The sixteen other firearms are still missing and have never been accounted for.

[3] During the year and a half that coincided with the currency of his firearms license and his buying and selling spree, the Defendant managed to start down the road toward a degree in philosophy and sociology at the University of Toronto. He is 24 years old. In his testimony at trial, he told much of his life story. Although I did not accept his explanation of what became of the firearms at issue, I can say that he otherwise impressed me as an intelligent and studious young man. This makes his investment of time, energy, and money in a dangerous activity such as firearms trafficking all the more unfortunate. It is a sad way for him to waste his considerable talents.

[4] In R v Jones, 1994 85 (SCC), [1994] 2 SCR 229, at 291, the Supreme Court identified the normative basis for criminal punishment:

In its Report entitled Sentencing Reform: A Canadian Approach (1987), the Canadian Sentencing Commission described, at p. 151, the fundamental purpose of sentencing in this way:

It is recognized and declared that in a free and democratic society peace and security can only be enjoyed through the due application of the principles of fundamental justice. In furtherance of the overall purpose of the criminal law of maintaining a just, peaceful and safe society, the fundamental purpose of sentencing is to preserve the authority of and promote respect for the law through the imposition of just sanctions.

[5] Needless to say, criminal punishment must reflect society’s condemnation of the Defendant’s activities. That, however, is not the only consideration that must be brought to bear in the sentencing process. As Lamer CJC stated in R v M (CA), 1996 230 (SCC), [1996] 1 SCR 500, at 566:

The determination of a just and appropriate sentence is a delicate art which attempts to balance carefully the societal goals of sentencing against the moral blameworthiness of the offender and the circumstances of the offence, while at all times taking into account the needs and current conditions of and in the community.

[6] In Jones, at 291, the Court articulated the three most prominent utilitarian goals of criminal punishment:

The criminal justice process can operate to protect society only by way of:

(a) the deterrent effect, both general and particular, of criminal prohibitions and sanctions;

(b) correctional measures designed to achieve the social rehabilitation of the individual;

(c) control over the offender in varying degrees…

[7] The balancing of these ends with an appropriate level of societal denunciation requires considerable thought and care.

[8] The Crown submits that the Defendant be sentenced separately on the two categories of offences for which he has been convicted. Considering the minimum of 3 years and maximum of 10 years imprisonment imposed by the Criminal Code under each of ss. 99(1) (trafficking in firearms) and 100 (possession of firearms for the purpose of trafficking), the Crown recommends a sentence of 9-10 years for each category; and then applying the principle of totality, the Crown seeks a global prison sentence in the range of 10-12 years.

[9] Counsel for the Crown observes that courts in Canada have exhibited a low tolerance for firearms offences. As Malloy J. put it in R v Ferrigon, 2007 16828 (ON SC), [2007] OJ No 1883, at para 25, “Guns are dangerous. Handguns are particularly dangerous… And equally importantly, [a person who commits an offence with guns] is dangerous to a way of life that is treasured in Canada and to which all residents of Toronto are equally entitled – a way of life that respects the rule of law to ensure the peace and safety of those who live here.”

[10] A similar sentiment was expressed by Nordheimer J. in respect of trafficking in firearms in R v Winchester, [2014] OJ No 1990, at para 24: “…we have the very serious and disturbing reality that because of [the Defendant’s] actions, a large number of dangerous weapons are out in the public undoubtedly in the hands of individuals who may use them for criminal purposes and who may, in doing so, harm entirely innocent persons.” Seen in this light, it is clear that sentencing for firearms offences must be in accordance with the goals set out in s. 718 of the Criminal Code – i.e. to foster respect for the rule of law and the maintenance of a just, peaceful and safe society.

[11] In R v Dene, [2010] OJ No 5192, it was held that consecutive sentences are to be imposed for multiple offenses where there is no relationship between the offences committed. Generally speaking, sentencing is done on a consecutive basis where the multiple offenses constitute “invasions of different legally protected interests”: R v Houle, 2008 ONCA 287, [2008] OJ No 1412, at para 4 (Ont CA).

[12] While the Crown concedes that this is a case for concurrent rather than consecutive sentences, Crown counsel also submits that there are aggravating factors at play here which push the appropriate sentence to the high end of the scale. Specifically, the Defendant’s guns were not just recovered at crime scenes; they were actually used to shoot people during the commission of those crimes. The trafficking conviction in the Defendant’s case connotes more than just an illegal way to make money; it places the Defendant as a crucial link in a chain of cause and effect leading to violent gun crime.

[13] Moreover, the Crown argues that the sheer quantity of guns sold by the Defendant shows deliberation and planning, and is itself an aggravating factor. The Defendant has been convicted of trafficking in seven firearms, but one inference regarding his missing 16 firearms is that they, too, have been sold into the stream of potentially violent crime.

[14] Defense counsel counters this by pointing out that there are a number of mitigating factors that must be taken into account. Specifically, the proceedings were streamlined by the submission of an agreed statement of fact, and the Defendant is a young person with no prior criminal record or history of criminality. He has a supportive family and a thirst for education and self-improvement.

[15] I was impressed with a brief of support letters submitted to me by defense counsel, all of which provide testament to the Defendant’s intelligence and strong character. Particularly eloquent were the letters of his younger brother, who spoke of him as a role model for education and growth, and his uncle who spoke about the essential strength of his character. I am also impressed that the Defendant has pursued a number of programs and courses while in custody, and that he has continued his university studies by obtaining special permission to attend classes at York University. A review of his transcripts shows that his grades are for the most part quite impressive.

[16] I agree with defense counsel that the sentence must be proportionate, and should reflect a punishment that is no greater than the Defendant’s moral culpability: see R v Nasogaluak, 2010 SCC 6, [2010] 1 SCR 206, at paras 40 to 42. The Supreme Court of Canada has made a point of describing sentencing as an “inherently individualized process”: R v M(CA), 1996 230 (SCC), [1996] 1 SCR 500, at para 92. Of course, the offense also has to be analyzed from a societal point of view. As the Alberta Court of Appeal put it in R v Arcand, 2010 ABCA 363, at para 48, “the severity of sanction for a crime should reflect the...seriousness of the criminal conduct.”

[17] The task is to compare the Defendant to other similarly situated offenders, while at the same time keeping in mind the unique personal circumstances of each person coming before the court. As the Ontario Court of Appeal has put it, sentencing “is a fact-sensitive process. Imposing a sentence depends very much on the facts of a particular case and the circumstances and culpability of the particular offender. That said, the sentence imposed must be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances”: R v Bottineau, 2011 ONCA 194.

[18] The Crown compares three other recent sentencings in firearms trafficking cases that bear some similarity to this case: R v Santapaga, December 17, 2013 (unreported), R v Winchester, supra, and R v Marakah, 2015 ONSC 1576, [2015] OJ No 1155. The defendants in those cases received 9 years, 8 years, and 9 years, respectively. It is to be noted, however, that both the Winchester and the Marakah cases entailed substantially more guns being sold than are in issue here. The Santapaga case, on the other hand, is quite similar to the case at bar. The defendant there, as here, purchased a quantity of firearms under a legally obtained license during a months-long buying spree, and the firearms then vanished with one of them turning up at a crime scene. The sentence of 9 years meted out in that case followed a guilty plea to one count of trafficking in a firearm and 14 counts of possession for the purpose of trafficking.

[19] Defense counsel submits that the sentences in those cases, and especially in the Santapaga case, are excessive. He compares this to R v Theriault, March 24, 2015 (unreported), where the Ontario Court of Justice sentenced a trafficker in fully automatic weapons to a total of 6 years’ incarceration. The defense submits that, if anything, the crime committed in Theriault – the conversion of ordinary handguns to fully automatic weapons for sale – is worse than the offenses at issue here. There are some sporting uses for the handguns possessed by the Defendant; fully automatic weapons such as those produced by the defendant in Theriault, on the other hand, are designed for mass killing and are used for no other obvious purpose.

[20] Having regard to the comparable cases of firearms trafficking, it appears to me that Theriault is the outlier and Santapaga is within the more acceptable range. While I have great sympathy for the Defendant here as a young man with obvious personal potential, I am equally cognizant of the fact that “public concern about gun violence has increased in Canada’s urban centres”: R v BC, [2011] OJ No 6661, at para 26. This is an eminently “justifiable public concern”, R v AB (2006), 2006 2765 (ON SC), 204 CCC (3d) 490, at para 27 (SCJ), and is borne out by recent Toronto police statistics showing substantial increases in shootings and injuries sustained through gun violence this year compared to previous years: online at http://www.torontopolice. on.ca/ statistics/ytd_stats.php.

[21] Defense counsel submits that the appropriate sentence is 6-8 years, while Crown counsel submits that the appropriate sentence is 10-12 years. It is apparent to me that the Crown’s proposal is disproportionately severe given the Defendant’s personal history, while the low end of the defense proposal is too lenient given the severity of the offense.

[22] It is the high end of the defense proposal that strikes the most appropriate and proportionate punishment. Before considering any of the further credits and deductions requested by the defense, I would assess the appropriate punishment for the Defendant as being 8 years imprisonment.

[23] Defense counsel points out that up until the date of the sentencing hearing (September 19, 2015), the Defendant spent 516 days in pre-trial/pre-sentencing custody. Another 24 days has now passed, making a total of 540 days that the Defendant has been in custody.

[24] Section 719(3.1) of the Criminal Code makes enhanced credit for this detention available at a maximum rate of 1.5:1 when the “circumstances justify it”. Counsel for the Defendant indicates in his written submissions that the Defendant endured difficult conditions in detention facilities during this period, and that as a consequence of the detention since his arrest the Defendant has lost earned remission on his incarceration. These factors have been specifically identified by the Supreme Court of Canada as circumstances that can justify enhanced credit under s. 719(3.1): R v Summers, 2014 SCC 26, [2014] 1 SCR 575, at paras 69, 71.

[25] Defense counsel also asks for a reduction in sentence based on the restrictive bail conditions imposed on the Defendant for the 42 days during which he was initially released on bail. These conditions required the Defendant to be accompanied by one of two family members at all times except when travelling to and writing his university exams, which was later varied to allow him to go to classes on his own.

[26] While a sentencing judge does have discretion to credit time spent on restrictive bail as time served, R v Downes (2006), 2006 3957 (ON CA), 205 CCC (3d) 488 (Ont CA), I am of the view that no such credit is warranted here. It is commendable that the Defendant wanted to continue his education while out on bail, but the notion that he should be accompanied while otherwise out on the town is not overly restrictive. Given that the Defendant does deserve a significant amount of credit for the time he has spent in detention, I would not award any credit for the short amount of time that he was out on bail.

[27] The Defendant deserves a credit of 1.5 days for each of the 540 days he has spent in detention, for a total credit of 810 days – i.e. roughly 2 years and 3 months. This amount is deducted from his 8 year sentence.

[28] Taking the credit for pre-trial detention into account, the Defendant is sentenced to a total of 5 years and 9 months in prison.

[29] In addition, the Crown seeks an order prohibiting the Defendant for the rest of his life from possessing any firearm or other weapon or ammunition as set out in s. 109 of the Criminal Code, as well as a DNA order pursuant to s. 487.051(2) of the Criminal Code. Both of those orders are hereby granted.

Morgan J.

Date: October 13, 2015